Lawsuits

A Boston man who claims he was threatened with a lawsuit when he refused to buy software he didn't want has turned around and sued the application's maker for privacy violations, claiming the software "phoned home" and gave a company consultant enough information to track him down.

The Massachusetts Appeals Court ruled against the clothing chain today in a tax case involving a subsidiary at which nobody worked.

The Hingham-based Talbots set up a subsidiary in another state, loaned it more than $100 million, transferred certain intellectual assets to it, then tried to deduct the cost of royalties for use of that property.

But the subsidiary had no employees and all decisions were made at Talbots headquarters back here in Massachusetts, and that constitutes a legal "sham," the court ruled, adding it was not amused to learn that:

The record also contains several letters and memoranda from Talbots employees and outside advisors which reveal that the transfer and licensing arrangement here "was specifically devised as a tax avoidance scheme."

The case is similar to a ruling against Syms in 2002 and against publisher IDG last fall.

• Complete ruling

Robert Ambrogi reports a Globe reporter who wrote about a performer upset over restrictions on his performance space at Faneuil Hall can't be forced to testify in his lawsuit against the city.

Bruce Peck, who performed as one of those painted mime-ish people, sued Boston in federal court in 2009 after Tom Menino ordered restrictions to ease the noise he said he heard way up in his fifth-floor City Hall office.

Peck wanted to compel reporter Donovan Slack, who wrote about the issue, to testify, but Judge Beryl A. Howell's ruled that reporters and their notes enjoy certain privileges, even for stories that don't involve confidential information, such as this one.

In a lawsuit now in federal court, the family of Carol Cauley says she died in 2008 because of a defective space heater that set her house on fire.

Debilitated by multiple sclerosis, and alone at the time, she was unable to escape, her family alleges in the suit against Herush Electrical, which made the space heater, De'Longhi America, which distributed it, and Lowe's, whose Framingham store sold Cauley's husband the space heater about three months before the fire.

The suit was initially filed in state court but was transferred this week to federal court. The family is joined in the suit by their home insurer, which wants to recoup the $436,000 it paid out to repair their home.

• Complete complaint.

The Massachusetts Appeals Court today overturned a judgment against a worker who had sued Harvard Vanguard for discrimination, ruling he has the right to make his case to a jury that having a supervisor call him "a dirty fucking nigger" was proof of workplace discrimination against him.

Cure Lounge today signed a consent settlement that ends a state investigation into the way it shut a post-Game party by black Harvard graduates in November, the state Attorney General's office announced.

The consent settlement requires the club to pay a $30,000 fine, send its workers to anti-discrimination workshops and issue this statement:

The Massachusetts Appeals Court today threw out a lawsuit against the Herald and Michele McPhee by an inmate who placed an online dating ad even though their story falsely accused him of manslaughter and "brutal sexual attack on an elderly woman."

In its ruling, the court said Edmond R. LaChance Jr. did not exactly cover himself in glory by omitting from his "Inmate Connection" ad that he was in maximum security for rape and aggravated rape. The court ruled that McPhee's 2005 articles on the dangers of hooking up with inmates online were based on state records which turned out to be incorrect, not because of any "actual malice" on McPhee's part.

UPDATE: Globe reports that Levine is now dead.

The Herald reports on a suit by 30 former patients of Dr. Melvin Levine against him for alleged medical malpractice and sexual abuse and against Children's for allegedly failing to do anything about him.

WBUR posted a copy of the complaint.

Last year, the Massachusetts Appeals Court dismissed a similar case by a single patient against Children's, because the alleged abuse happened between 1967 and 1969, when the state still granted absolute immunity to hospitals against suits over the actions of their physicians.

The Massachusetts Appeals Court ruled today that some families living on Hingham's Crow Point can continue to use a small beach that had been blocked off in 2004 by some other families closer to the water - decades after the entire neighborhood first began using the beach.

In its ruling, the court said a lower-court judge erred in siding with the blockers by incorrectly interpreting part of the Colonial Ordinance of 1641-1647, which codified what is still Massachusetts law on property rights of seaside residents.

The Massachusetts Appeals Court ruled today a woman who claimed to be the daughter of an East Boston parking-lot owner could share in his estate even if none of the man's relatives had ever heard of her - or even if she was not his biological daughter.

At issue is a $32-million estate left by Lou DeSanctis, who, despite having made millions running contracting businesses and two East Boston "park and fly" lots, died without a will in 2008.

A few months after his death, his sister, Lydia Bevis, turned over administration of his estate to Mary Verna Hughes, who said she was DeSanctis's daughter. That came as shocking news to his nieces and nephews, who had never heard of her and who sued to block her from sharing in the estate.

But, as the appeals court noted:

A federal appeals court ruled today Lahey Clinic had the right to dismiss a worker who accompanied her husband on a seven-week trip to the Philippines for a series of "healing pilgrimages" for a serious heart ailment and other medical problems.

Frozen syrup, anyone?Our own Polar Beverages is suing Pepsi to try to make it rename a new line of frozen sludge drinks called "Polar Shock."

In a lawsuit filed yesterday in US District Court in Boston, Polar charges the name will make people think it had something to do with the stuff, which is now offered at BU's Agganis Arena.

Polar argues that, in addition to basic trademark issues, the new brand will harm Polar's reputation by unfairly associating it with slush laden with high-fructose corn syrup when, in fact, Polar is now promoting some of its products as "Fizzically Fit." In the complaint, Polar notes it sponsored the "Fizzically Fit Summer Tour of 2010," featuring Ayla Brown:

The Supreme Judicial Court ruled today that a trash company that docked employees after they damaged trucks or other people's property was violating state wage laws.

The Massachusetts Appeals Court ruled today a worker injured at a Childrens Hospital construction project in 2003 has the right to sue the contractor who hired him because the site was a complete and dangerous mess.

A lower court had thrown out William Docos's lawsuit against John Moriarty and Associates on the grounds the leaning sheetrock that injured him was "an open and obvious" danger, so his injuries were his own fault.

But the appeals court reinstated his lawsuit, saying there's dangerous and then there's dangerous:

A federal appeals court says a Randolph mother is entitled to try to convince a judge or jury that Bob's Discount Furniture was responsible for a bedbug infestation that caused her and her daughter "lasting health problems, emotional distress and economic loss."

The Supreme Judicial Court ruled today it is fed up with a Dorchester man who keeps filing lawsuits and appeals against judges, court clerks, prosecutors, police and his own lawyer.

The court took the unusual step of ordering court clerks to refuse to even accept a single filing from Lawrence Watson "unless it is accompanied by a motion for leave to file, and shall not docket the petition or appeal unless and until the full court grants the motion on making a preliminary determination that the petitioner has no other adequate remedy and that he has furnished the court with a record that substantiates his claims."

Waltham-based Wow What Savings wants at least $5 million from AOL and its Patch subsidiary for setting up a similarly cloned group-buying site at wow.com.

We now have an equivalent in divorce court: A woman who appealed a divorce ruling giving her ex-spouse most of their assets even though she tried to have him murdered.

The Massachusetts Appeals Court this week upheld a family-court judge's decision to award 90% of the couple's assets to the husband, who now has full custody of their two children and who suffered painful injuries in what might have been an attempt at murder by drowning.

The Supreme Judicial Court ruled today that two banks can't claim ownership of two foreclosed Springfield homes because of their shoddy paperwork.

The ruling is a possible blow against banks seeking to foreclose on mortgages that were sold and resold or bundled as "securitized" investments in the years leading up to the near collapse of the financial industry, at least if they failed to dot all their i's as they would normally expect their customers to do. In its ruling, the court said:

Recognizing the substantial power that the statutory scheme affords to a mortgage holder to foreclose without immediate judicial oversight, we adhere to the familiar rule that "one who sells under a power [of sale] must follow strictly its terms. If he fails to do so there is no valid execution of the power, and the sale is wholly void."

Two of the justices went even further in expressing their disgust:

A Los Angeles mortgage executive has sued our own New Balance, alleging its line of "toning" sneakers should be pulled from the market - after, of course New Balance issues refunds to everybody who bought them and at least $5 million on top of that.

In her lawsuit against the Brighton company, filed this week in US District Court, Bistra Pashamova of Santa Monica, CA., alleges her pair of sneakers caused an unspecified injury serious enough to cause her to miss work.

Her complaint includes copies of New Balance ads that purport to show added muscle benefits of wearing the footwear.

Reebok, based in Canton, is facing similar lawsuits.

• Complete complaint

The Massachusetts Appeals Court ruled today a woman who took her daughter away from Lebanon doesn't have to return her daughter there because its courts did not consider the same issues Massachusetts courts would when considering her case.

As promised/threatened, convicted ex-city Councilor Chuck Turner has filed a federal lawsuit demanding he be allowed back into the City Council chambers.

In his suit, co-filed with several constituents yesterday in US District Court in Boston, Turner charges the council violated his and their Constitutional rights against punishments enacted after the fact - in Turner's case, a council rule allowing for ousters that was passed after his indictment - and that the move leaves all of District 7 without an elected representative. Somewhat ironically for a man who once proposed gutting the First Amendment, Turner also charges the council violated his First Amendment rights.

The Supreme Judicial Court ruled today local health boards can sue the state over possible well contamination from sheds used to store salt and other de-icing agents.

The state's highest court rejected an argument from the state highway department it was immune from regulation by local health boards under the principle of sovereign immunity, in a case brought by the town of Boxford over a salt shed:

MIT charges a Littleton startup failed to pay licensing fees for three of its patents, so now it wants a judge to order the company to stop using them - and pay the fees.

It's MIT's second suit this month against Still River Systems. Last week, MIT sued Still River to force it to add an MIT researcher to a patent used for the company's single-room synchrocyclotron, which can be used to target an intense beam of radiation at certain types of tumors.

In a suit filed yesterday in US District Court in Boston, MIT alleges Still River agreed to pay it nearly $900,000 for the use of three other patents for the device - all based on work by Timothy Antaya, the researcher MIT charged was improperly left off Still River's patent. MIT says that as part of an agreement with the school in 2004, Still River agreed to sponsor Antaya's work on shrinking the size and cost of the devices - existing proton-beam accelerators can cost up to $100 million each - and to pay the licensing fee for Antaya's three patents, all assigned to MIT, then stop using them.

• Complete complaint
• Magnet structure for particle acceleration
• High-field Synchrocyclotron
• High-field superconducting synchrocyclotron

The federal government wants to join a local environmental group's lawsuit against Boston for allegedly failing to keep crap out of rivers feeding into Boston Harbor.

In a motion filed in US District Court in Boston yesterday, the EPA said it agrees with the Conservation Law Foundation's suit that the Boston Water and Sewer Commission has failed to do enough to keep bacteria, oil and dissolved metals and chemicals out of Boston Harbor. The gunk comes from 201 "outfall" pipes that collect road runoff from nearly 20,000 catch basins - and from Brookline - and pours into the Mystic and Charles Rivers, from which they flow into the harbor.

H. Curtis Spalding, regional director of the federal EPA, said in a statement that the suit will help get the BWSC to fulfill its obligation to keep the Harbor clean after all the money spent to keep raw and partially treated sewage out of it.